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Mental Capacity Act 2005 and safeguarding vulnerable adults
[13] The Mental Capacity Act, 2005 established a new Court of Protection (COP), with jurisdiction over all aspects of the legislation. It became operational in 2007. Case law decisions from this court are of increasing importance in guiding adult safeguarding practice. This article provides an outline of the role of the court, includes key findings from the annual reports of the court's activities and focuses on an area where the court has received some criticism, namely its perceived secrecy[1] . Future issues of The Journal of Adult Protection will include case commentaries highlighting the practice implications of the developing caselaw.
The Court of Protection
The court has a central office in London, but may sit anywhere in England and Wales, as one of its objectives is to be more accessible than its predecessor. The court is supported by the roles of Public Guardian ([7] Hartley-Jones, 2011) and COP Visitor. The Official Solicitor will usually act for the person who lacks capacity.
The court has an extensive range of powers set out in the Act relating to personal welfare (e.g. where to live; contact; consent to treatment), and property and affairs (e.g. managing a financial settlement; executing a will), of adults lacking the relevant capacity. The court may make declarations (interim and final) as to whether a person lacks capacity for a decision (e.g. where to live) and the lawfulness of any acts done in relation to the person. The validity of a Lasting Power of Attorney may also be considered by the court. Where ongoing decision making is required the court can appoint (and may remove) a "deputy/ies" to make personal welfare, property and affairs decisions. A decision by court is preferred to the appointment of deputy. The guiding principles of the Act apply, thus, decisions must be made in the best interests of the individual.
The Code of Practice gives further guidance about the types of cases that should be brought to the court's attention (para 8.28), including for example: "someone suspects that a person who lacks capacity to make decisions to protect themselves is at risk of harm or abuse from a named individual (the court could stop that individual contacting the person who lacks...